Pennsylvania Law Weekly News

Nearly seven months into a calendar year when the Pennsylvania Supreme Court is operating with two vacant seats, the justices appear to be issuing opinions at a reasonable pace, observers said, while the court's leader has taken an especially active role in writing.

A police officer executing a search warrant at a man's home did not have probable cause to arrest another man on the premises, despite the fact that another police officer saw the defendant take part in a drug transaction days before, the state Superior Court has ruled.

A roof painter who signed an independent subcontractor agreement after being injured at the job site is still eligible for workers' compensation benefits because he was an employee at the time of his injury, the Commonwealth Court has ruled.

In a letter, the top two state lawmakers asked Attorney General Kathleen Kane to investigate Planned Parenthood given the release of a video showing the group's medical director discussing procedures for providing researchers with the body parts of aborted fetuses.

I read an opinion of the Pennsylvania Bar Association's Legal Ethics Committee concerning ethical responsibilities of both the prosecutor and defense counsel for early accountability programs. Is it correct?

By now, you have probably heard about the case out of Michigan where a family court judge sent three siblings to juvenile detention for refusing to visit their estranged father. The children's parents divorced five years ago and have been battling in court ever since over custody.

In defending a claim for workers' compensation benefits, the employer is entitled to compel the injured worker to undergo a physical examination under Section 314 of the Pennsylvania Workers' Compensation Act.

In filings before the state Superior Court, the appeal of a woman convicted of aggravated assault, simple assault, endangering the welfare of a child and recklessly endangering another person have started focusing less on the defendant and more on the conduct of the judge who oversaw the case and the Centre County district attorney.

An employer should be able to recoup an offset in workers' compensation benefits from a claimant who received disability pension payments, the Commonwealth Court has ruled, because it satisfied its notification duty by sending reporting forms to the claimant.

Allegheny County and the former company that provided medical services to the county prison have agreed to settle for $2.09 million with the estate of a prisoner who died after weeks of asking for medical treatment to no avail.

Following is a listing of legislative and executive action for the week of July 13. Members of the House of Representatives were set to return to session July 20; members of the Senate are scheduled to return Sept. 21.

Legislation permitting legal action against local governments that approve gun-control ordinances stricter than state law will be back after the Commonwealth Court last month ruled the law unconstitutional.

I sued a corporation, and one of its former employees who has critical material called and wants to meet with me to provide information. Can I meet with this person or would it violate Rule of Professional Conduct 4.2?

The U.S. Supreme Court recently handed down a smattering of criminal justice-related decisions. Although those decisions will have differing influence on the criminal justice system, it is important to note two recent Pennsylvania Supreme Court decisions that will have an impact as well.

Starting a small law firm or going out on your own as a solo practitioner takes a lot of courage, among other things, like confidence, determination and hopefully, a portable book of business. Sometimes the impetus for the new venture is a desire to depart from the culture or business model of Big Law.

The statute of limitations on an insurance company's lawsuit over coverage duties is triggered when the insurer becomes aware that it may not have a duty to defend and indemnify, the state Superior Court has ruled.

Recordings obtained by a police vehicle's in-car camera are not exempt from disclosure as criminal investigative records, the Commonwealth Court has ruled, under both the Right-to-Know Law and the Criminal History Record Information Act.

Pharmaceutical companies AstraZeneca and Cephalon have agreed to pay the U.S. government and several states a combined total of $54 million to settle claims that they underpaid rebates owed under the Medicaid Drug Rebate Program, according to the U.S. Department of Justice.

An electrical worker who was injured by a track loader with a 10-year-old operator has reached a $12 million settlement with the defendants, after a trial court judge's opinion overturned the original $20 million verdict in the case, but before the Superior Court affirmed that decision granting a new trial.

Eddystone Borough and Nether Providence Township, both in Delaware County, are the two most recent examples of local pension systems gone awry. Auditor General Eugene DePasquale used the two in his now almost monthly plea for the General Assembly to act to avert a full-blown financial crisis on the local government level.

I can still remember the sage advice that my Civil Procedure professor offered in my first law school class: "Get the fee first," he said, as his class of students listened attentively. We were shocked. After all, we went to law school to help people and to assure that every member of society would have access to justice. But his words struck a chord in many students, who recognized the underlying message that law is a business as much as it is a profession.

For all intents and purposes, Pennsylvania has abandoned the doctrine of contributory negligence in favor of comparative negligence. That is, the allocation of a plaintiff's own contribution to a defendant's liability will offset the ultimate award but not preclude recovery if the plaintiff's own liability is 50 percent or less causative. Plaintiff liability contribution of 1 percent has all but been eliminated as otherwise barring an action.

The inclusion of an arbitration clause in oil and gas leases throughout the Appalachia region, requiring that parties arbitrate disputes arising out of their leases, has become commonplace. As development of these leases continues and royalties are paid for production, disputes over the meaning of lease provisions concerning payment are occurring more frequently. A relatively new battlefront in these arbitrations that is being played out in Pennsylvania right now is whether class-action arbitrations of these lease disputes are authorized.

A recent U.S. Supreme Court decision affirmed for the second time the constitutionality of the Affordable Care Act, but it also may have given the defense bar a little more of a bargaining chip when it comes to personal-injury cases.

On Sept. 1, 2009, plaintiff Antonio Costagliola, 34, a pizzeria owner, presented to otolaryngologist Samuel Rizzo, of Pittston, because of episodes of recurrent tonsillitis for approximately five years.

For the first time ever, both the state House of Representatives and Senate last week approved legislation that would start to get the state out of the liquor and wine business. Gov. Tom Wolf is expected to veto the bill, but Republican lawmakers will continue to push for some level of liquor privatization as budget talks continue.

The USA Freedom Act of 2015, enacted June 2, sharply curtails the ability of the National Security Agency and FBI to obtain, without judicial approval, transactional telephone records from carriers and to search the metadata contained in those records without judicial approval as well.

With a growing number of townships, boroughs and cities experiencing fiscal challenges, many municipalities have increased or are considering increasing their fees related to the administration of their zoning, subdivision and land development, and related ordinances as a means of generating additional revenue.

An employee who did not directly tell her employer that she was able to return for work did not violate a reasonable expectation under workers' compensation law, and may therefore collect unemployment compensation for her termination, the Commonwealth Court has ruled.

Reinforcing a prior decision on a first-impression issue, the state Superior Court has ruled that a plaintiff's wrongful-death and survival actions against a nursing home facility will not need to be bifurcated so one claim can go to a jury trial and the other to arbitration.

Legislation that would require a state fiscal office to determine the cost of public-sector contracts before they take effect cleared the state House of Representatives State Government Committee. The bill, SB 644, has already won approval in the state Senate.

Litigation involving mergers, asset acquisitions or other change-in-control transactions can give rise to complicated questions concerning the attorney-client privilege. In recent years, a developing body of case law has emerged regarding the control of the attorney-client privilege in the context of mergers and acquisitions.

Nearly 10 years after it was first introduced, the Protection of Victims of Sexual Violence or Intimidation Act takes effect in Pennsylvania on July 1, making it the 34th state to establish protection for sexual-assault victims. The act provides victims of sexual violence or intimidation a civil remedy that requires the offender to stay away from the victim regardless of whether the victim decides to seek criminal prosecution. While the PSVI Act is modeled closely after the Protection from Abuse Act, there are some key differences.

When the U.S. Supreme Court took up the appeal of Anthony Elonis' conviction in Elonis v. United States (Docket No. 12-983, Term 2014), under the federal criminal statute 18 U.S.C. Section 875 (related to the use of transmitting by interstate or commerce any communication threatening to kidnap or injure another person), observers and legal analysts surmised it was the court's first significant foray into social media speech and content.

In the early weeks of his administration, Gov. Tom Wolf raised questions about the limits of executive power, to which the other branches of government are now proffering contested answers. But conclusions from the state's high court are yet to come, and could reshape the way Pennsylvania treats its governors.

When a plaintiff's attorney contacts only one potential expert to support a certificate of merit and that expert does not support the plaintiff's claims, a genuine issue of material fact exists as to whether the attorney breached his duty of care, the Superior Court has ruled.

A Philadelphia jury handed up a defense win in a suit brought by an Illinois woman who said her use of the antidepressant Zoloft during pregnancy was the cause of her daughter's congenital heart defects.

A federal jury unanimously handed up a defense verdict, rejecting allegations of discrimination by Tom Burlington, the white news anchor who was fired by the Fox 29 television station after he used the word "n-----" in an editorial meeting.

Proponents of establishing a merit selection system for judges at the appellate level are trying yet again to get a bill through the General Assembly—twice, since it would amend the state Constitution.

Imagine the following scenario: You make the decision to move your law office to a nearby town. Like most lawyers, you've got plenty of bills to pay, and you want to start increasing the flow of new clients to the new office as soon as possible. If you're like most attorneys today, you forget about the local newspaper and the Yellow Pages, and decide to concentrate your marketing efforts on the place where most of the public goes to find a lawyer these days: the Internet.

Family law practitioners and courts often assume that when an individual is receiving disability income, that individual does not have an earning capacity. This Q&A, with responses from vocational expert Jasen Walker, explains why this assumption is not always correct.

I've written regularly about communicating before, during and after crises in these pages. While new technologies and external events continue to change the environment in which we work and live, the basic tenets of crisis communication have generally remained stable: Respond and take ownership of your or your client's mistake if necessary; say what you're going to do to ensure that the mistake doesn't happen again; and provide a vehicle (a phone number and website) for your audience to learn more or ask questions. Perhaps it's now time to add a new tenet: Determine the potential for damage resulting from your mistake to your online reputation.

Increasing options and decreasing prices in portable and wearable technology, like Google Glass, have made it easier for the average person to capture moments in everyday life, but that ability comes with a plethora of legal questions regarding wiretapping, privacy and admissibility of evidence.

In the past three months, three high-profile civil suits over hazing and harassment have been filed against two universities in Pennsylvania, and that cluster of lawsuits is no coincidence, according to personal injury attorneys and defense counsel.

The public pension crisis on the state level receives most of the attention, but pensions in some municipalities are likewise drowning in debt, and last week the state House of Representatives State Government Committee moved a bill that would change the pension system for all future hires of local police and fire departments.

I recently graduated from law school, but I have not yet been admitted to practice law in Pennsylvania. I am working with a law firm that has hired me with the understanding that as soon as I am licensed, I will be doing attorney work and become an associate in the firm. What can I do now?

The article titled "Attorneys Say AG Work Lags in Pennsylvania," published June 2 in The Legal, discussing consumer protection work, could not have been more off-base and was downright misleading. In fact, consumer protection in Pennsylvania has made a long overdue comeback under Attorney General Kathleen G. Kane's watch and we have the facts to prove it.

When negotiating consent decrees with a government agency, should the fact that the agency is a state or federal agency matter? If a state is not accorded the same deference toward its decision to enter into consent decrees—because it is enforcing a federal environmental law—how does the strategy change for state agencies and private parties?

Landowners in Kentucky may be emboldened by a recent decision by the Kentucky Court of Appeals that rejected an attempt by Bluegrass Pipeline Co. to obtain public utility status that would allow it to acquire easements pursuant to eminent domain.

In an effort to revitalize a student loan debt program supporting attorneys who provide civil legal work for those who can't afford representation, the state Supreme Court has nearly doubled the fee for out-of-state attorneys to appear in Pennsylvania courts.

A punitive damages cap of 200 percent of the compensatory damages awarded in a lawsuit against personal care facilities would apply under SB 747, approved by the state Senate Banking and Insurance Committee last week.

In One Beacon America Insurance v. Philadelphia Indemnity Insurance, No. 2012-cv-4490 (April 13, 2015, Lackawanna CCP), the Lackawanna County Court of Common Pleas held that the plaintiff insurance company's inadvertent disclosure of an intra-office memorandum, referred to as a case conference sheet, was not privileged and therefore did not open the door to a subject-matter waiver of attorney-client privilege, despite the fact that it revealed sensitive communications from the plaintiff's attorney.

Many cases are ultimately won or lost because of early preparation or lack thereof. Spoliation can be a key to winning a liability case where there appears to be no apparent strong theory. This is especially true in premises liability cases, where relevant evidence is lost or destroyed.

When a physician implants a device in a patient, does informed consent require the doctor to tell the patient of any financial relationship the physician or the institution he works for has with the manufacturer or distributor of the product?

Increased media scrutiny of police brutality allegations seems to be affecting prosecutors' approach to allegations against first responders, some criminal defense attorneys have said. But a representative of Pennsylvania district attorneys said they have always assessed those situations carefully, and that has not changed.

In clarifying the application of a nearly 50-year-old case, the state Supreme Court has rejected an insurance carrier's argument that property owners, who were additional named insureds under a restaurant's commercial umbrella policy, were precluded from coverage under the policy's employer's liability exclusion.

A preponderance of the evidence standard can be applied to a statutory claim under the Unfair Trade Practices and Consumer Protection Law, rather than a clear and convincing evidence burden of proof, the Superior Court has ruled in a matter of first impression.

The state Superior Court has jurisdiction to hear all appeals regarding separate judgments in consolidated medical malpractice litigation, even though one of the judgments predated the others by almost two years.

The state Superior Court has remanded a sex-crime victim's Fraudulent Transfer Act suit for further consideration about whether the perpetrator and the businessman who purchased the perpetrator's small business are indispensable parties in the case.

State lawmakers returned to Harrisburg this week after a two-week break and, if some predictions are right, might not get another break from session for another couple of months. They face a June 30 deadline for the approval of a spending plan for the 2015-16 fiscal year that starts July 1, but most observers contacted said they expect the negotiation process to go well beyond that date.

On April 1, U.S. Sen. Robert Menendez, D-New Jersey, and Dr. Salomon Melgen were charged in the District of New Jersey in a lengthy indictment, accused of conspiracy, bribery and honest services fraud.

Many would agree with Benjamin Franklin that silence is a virtue. However, I have never been known for keeping quiet. I recently received a magazine from a legal publisher and found so many law firm marketing mistakes and faux pas that my head began to spin.

A commercial real estate company was not liable for hiring a contractor who was found negligent after a multi-alarm warehouse fire, as the plaintiff failed to show evidence of negligent hiring, the Superior Court has decided.

Pennsylvania's two state-level pension systems, the State Employees' Retirement System and the Public School Employees' Retirement System, are enormously underfunded and starting to strain the state budget, according to Auditor General Eugene DePasquale, whose office in January updated the status of municipal pension systems.

It started with a letter to lawmakers from a coalition of natural gas drilling interests and broader business associations. The letter said Gov. Tom Wolf's plan to impose an extraction tax on natural drilling in the Marcellus Shale would "set the commonwealth back instead of allowing the state to grow its economy, jobs and provide Pennsylvanians with lower energy bills."

When might a workers' compensation claimant who files in Pennsylvania but receives medical treatment in another state have to pay medical expenses over and above the statutory rates her medical provider receives?

It is common practice in the oil and gas industry for only the lessor to sign an oil and gas lease. This practice has led to disputes in Pennsylvania regarding whether a lease signed by the lessor alone is valid under the Pennsylvania Landlord and Tenant Act's statute of frauds.

Clients often ask about their responsibility for college education. In Pennsylvania, neither parent has a legal obligation to pay for their child's college education. But in some cases it may be worthwhile for a parent to agree to pay a portion of the cost.

A homeowner's insurance carrier was within its rights to deny coverage to a man who provided the use of a dirt bike—and, allegedly, alcohol—to a 19-year-old who was fatally injured when he crashed the vehicle, the Superior Court has ruled.

Counsel for a disabled woman who won a $3 million verdict against the group home that was caring for her has filed a motion to "enforce stare decisis" in an effort to get the common pleas judge to proceed with a new trial on punitive damages.

Last week, the state Senate approved public pension reform legislation, SB 1, with a 28-19 vote, setting the stage for what is virtually unanimously expected to be a contentious budget battle between the General Assembly and Gov. Tom Wolf.

Legislation that would legalize the use of marijuana to treat certain medical conditions cleared the state Senate last week and is now before the state House of Representatives. A spokesman for the House Republican Caucus said there is no timetable for considering the bill.

The most important tool provided to a litigant to test the credibility of parties, witnesses and expert witnesses at trial, and thereby challenge the truth of the adversary's claims, is the right to conduct a thorough and cutting cross-examination.

U.S. District Judge Cynthia Rufe of the Eastern District of Pennsylvania recently decided motions in a case among successive owners of a property with an environmental problem. Her opinion in CSX Transportation v. 2712 Investors, Civil Action No. 14-7148 (E.D. Pa. Apr. 29, 2015), provides some useful reminders of very basic propositions about environmental due diligence in real estate transactions and the litigation that follows when things go wrong.

The language of an insurance policy must be clear and specific in order to effectuate the intent of the insurer and insured. Failure to sufficiently define key terms and conditions of a policy in a plain and unambiguous way can have the effect of broadening the scope of coverage of the insurance policy. For best practices, insurers should be advised to specifically define each term that may have an impact on the scope of coverage of their policies.

As Pennsylvania's Supreme Court justices took up an issue on health care rates and the Right-to-Know Law during oral arguments in Harrisburg last week, they eyed the use of "middlemen" for government functions, specifically the extent to which records of contracts and subcontracts should be publicly available.